Accused of downloading porn, Kentucky woman sues the pornographers

One-woman crusade against "extortion," "trolling," and "shakedowns."

Jennifer Barker picked up her telephone in May 2012 to find, on the other end of the line, a woman who said her name was Stephanie Hansen. Hansen was calling to settle a lawsuit against Barker—all over the illicit downloading of pornography via BitTorrent back in December 2011.

Barker had heard nothing about any lawsuit; indeed, she said that she had never downloaded pornography from the 'Net and had no idea what this "BitTorrent" even was. Hansen nevertheless wanted a payment; if none was forthcoming, Barker might well find herself facing up to $150,000 in damages under US copyright law. And her name might be publicly linked with pornography.

Barker refused to pay, so Hansen called back, allegedly leaving multiple voicemails and even calling Barker at work. Barker, fed up, believed she was being extorted. She went out and found a local Kentucky lawyer, Kenneth Henry of Louisville, and together they devised a legal strategy to fight back.

Yesterday, Henry filed a federal lawsuit on Barker's behalf in Louisville, targeting five pornographers who seek to "extort money from individuals they claim have downloaded pornography from the Internet." The suit further seeks class action status on behalf of "individuals throughout the United States who have been subjected to the unlawful extortion attempts of the Defendants herein." Henry estimates that this class exceeds 200,000 people.

Systematic "trolling"

Henry lays out for the judge how the current round of file-sharing lawsuits proceeds:

The pornography purveyors utilize a technique known as trolling whereby individuals hired by the various pornography purveyors search for Internet protocol (IP) addresses associated with the use of file sharing software such as BitTorrent. Once the IP addresses have been harvested, the various pornography purveyors file suit naming defendants as John Doe. They then seek to have mass subpoenas issued for the Internet providers associated with the harvested IP addresses in order to obtain the name and address of the owner of the IP address on the date it was harvested. Recently, the pornography purveyors have begun using the court system of the state of Florida to file true bill of discovery lawsuits in which they seek only to extract the names and addresses of the individuals associated with the various IP addresses.

Once they obtain contact information, the pornography purveyors begin to shakedown these individuals by telephone. The tactics of the pornography purveyors clearly indicate that they are not convinced that the individuals they accuse of downloading pornography from the Internet have actually done so. This is true because they often shake the individuals down for $1,000-$5,000. The pornography purveyors know that this amount of money is less than the cost of defense would be if suit were filed. They also know that individuals such as the Plaintiff in this matter are embarrassed to have their names associated with pornography, and therefore, are susceptible to being shaken down...

In effect, the pornography purveyors have developed a new business model using the court system to extort money from individuals who are merely identified by IP address and with no proof whatsoever that they downloaded copyrighted materials from the Internet.

And, in what has become an increasingly common proceeding in Internet cases, Henry makes quite a bit of the fact that an IP address does not identify individuals, but machines.

Often these targets of the pornography industry have had their IP address "spoofed," a process whereby an IP address is forged and made to appear to be an IP address other than the actual IP address of the person using the Internet. Others have been the victims of a compromised home network that has been used by others unbeknownst to the owner of the network. Furthermore, even if the IP address has been correctly identified, the mere fact of ownership of the IP address does not in any way indicate that the owner participated in an unlawful download of copyrighted material.

It's a pretty decent overview of the process we've seen for the last two years, but the key question is whether any of it is actually "fraud" or "extortion"?

"That can't be unlawful"

To see how this will likely play out, consider the case of Uwe Boll, the German filmmaker behind the film Far Cry. Boll hired the US Copyright Group (really a group of Virginia attorneys) to sue downloaders of his film. One of the eventual targets of this process, Dmitrity Shirokov, in 2010 sued the US Copyright Group and Boll's company for racketeering, fraud, and unjust enrichment over their attempt to get him to pay up. Shirokov, like Barker, has sought class action status for his case.

Eighteen months into the litigation, the two sides are still arguing hard, and nothing like a trial is in sight. (A judge recently allowed several of the fraud charges to remain, but threw out several others). At a status hearing a few months back, the two sides made the same basic arguments we're likely to hear in Barker's case.

A lawyer representing US Copyright Group made clear that the lawyers concede no wrongdoing at all. Indeed, Shirokov never suffered any harm, since he never paid them any money nor had any lawsuit filed against him. He should, said the lawyer, have no standing to sue just because he got a letter he didn't like:

The big picture here is that the plaintiff [Shirokov] got the settlement demand letter. It was sent to him by my clients, who are attorneys acting on behalf of their client. He didn't settle the case. He didn't pay an attorney to defend the case. In fact, he was never served with process in the case. He was never brought into court. And essentially he's saying that because I got a demand letter that I didn't think stated a valid claim against me, I get to sue the attorneys and their clients for fraud, extortion, RICO violations, money hadn't received, unjust enrichment. Just a myriad of claims.

But Jason Sweet, representing Shirokov, contended that his client had been harmed simply by getting such a letter and by seeking legal advice about it. That costs money. Besides, the entire litigation scheme, said Sweet, was designed to go after people while making it hard for them to mount a defense:

This case is not about getting justice. This case is not about going into open court to seek a hearing for your claims. In this case, they did everything they could to prevent that. They kept forestalling serving any defendants so they could further the time to collect payments. They have abandoned claims, effectively, against almost the entire class...

They aren't going after people, and, in fact, in the handful of cases that they have gone after people one on one, they can't get a settlement and they can't get a default judgment. They simply sit on the case and do nothing. And so in case after case, cases filed early last year, there's been no action after the defendants answered a complaint. So they're not moving forward. The business model they've got is to avoid moving forward.

But the lawyers and filmmakers behind these cases insist that there's nothing nefarious about what they're doing; even if particular demand letters are incorrect, there's nothing generally improper with sending them. Such letters are staples of the legal profession; what would lawyers do without them? As for not bringing every single "Doe" case they file to trial, they note that it is generally preferable to come to a settlement than to file a lawsuit. As one lawyer for the defendants put it:

[Plaintiffs] weave all sorts of nefarious facts in and suggest that there's no intent to move forward with the litigation, and so on and so forth, but the litigation is often used simply as a tool to negotiate a reasonable settlement. That can't, in and of itself, be unlawful. The precedent that we could set there could be equally confusing, I suppose, because once you file a lawsuit, you're then obligated to take it to trial? And do you face the possibility of a counterclaim saying well, this is just a scheme. This is what you guys do. This is a—you know, lots of companies have to sue a lot for debt collection, any number of things. This kind of theory really would not fly in the ordinary practice of law.

The lawyers have a hard time seeing why receiving letters that demand you pay money or risk a major federal lawsuit should cause such commotion; after all, as Boll's lawyer put it, "A demand of $1,500 is certainly not unreasonable. So the letter itself, compared to demand letters that I get every day, appears to me to be, frankly, benign."

But the real innovation in this entire business model has been the way it threatened to drag so many non-lawyers into federal court, potentially facing astronomical statutory damages. The letters aren't going to lawyers; they aren't going to companies with lawyers; they're going by the tens of thousands to ordinary people, many of whom are baffled and angry by the demands being made. For those people, a choice to pay $1,500 to some voice on the end of a telephone call or to pay $1,500 for legal advice instead isn't "benign" at all.

122 Reader Comments

I believe debt collectors can't call your workplace once you have told them not to. If they continued this, you could sue the law firm as a debt collector as that is what they are trying to do, collect a debt, even if the debt is manufactured. Then use the remedies available to you under the debt collection laws to get a fine from the lawyers, then use that collected fine to pay the settlement, which will probably be less than the fine, so you come out ahead!

Have any of these guys considered asking the Doe to simply pay for the film they watched? Ring em up and ask them to throw you a few bucks since we made a film you may or may not have watched/enjoyed/wanked to.

Time to order more paper and extra ink cartridges, 'cause I've got some letters to send!

"It is our belief that you, [insert name here], have been downloading porn so we're going to make you an offer: You can either send us $5,000 or we'll publicly accuse you of being a consumer of pornography, a pervert and deviant, and a thief. The burden of proof for us is low and even if you don't lose you'll be publicly embarrassed and possibly in the hole for a lot more than $5,000 in lawyer fees if you go that route."

I'd normally feel like a real shit doing something like that, but it seems its legal and acceptable these days.

15 USC § 1692e paragraph 5 of the Fair Debt Collections Practices Act makes it a violation to: "... threat(en) to take any action that cannot legally be taken or that is not intended to be taken." The factual question at hand is whether they have any intention of taking these cases to court and the circumstantial evidence would make it seem like no.

The penalties for violations of the FDCPA under 15 USC § 1692k include $1,000 per individual and up to $500,000 per class action PLUS attorney's fees.

There is a remedy at law for this type of behavior and I am glad someone is availing themselves of it.

A lawyer representing US Copyright Group made clear that the lawyers concede no wrongdoing at all. Indeed, Shirokov never suffered any harm, since he never paid them any money nor had any lawsuit filed against him. He should, said the lawyer, have no standing to sue just because he got a letter he didn't like:

This is arguing that just because you put a gun in someone's mouth and demanded all their money, that just because you didn't pull the trigger yet and they hadn't given you money yet, that no crime had been committed. If a 4 year old pretends their hand is a gun and threatens you, no one takes that seriously because they do not appear to have the intent or ability to follow through on the threat. When a lawyer threatens to ruin your life through legal means, people better damn well take that seriously. That is a thug with a very real gun in your mouth.

15 USC § 1692e paragraph 5 of the Fair Debt Collections Practices Act makes it a violation to: "... threat(en) to take any action that cannot legally be taken or that is not intended to be taken." The factual question at hand is whether they have any intention of taking these cases to court and the circumstantial evidence would make it seem like no.

The penalties for violations of the FDCPA under 15 USC § 1692k include $1,000 per individual and up to $500,000 per class action PLUS attorney's fees.

There is a remedy at law for this type of behavior and I am glad someone is availing themselves of it.

I think the attorneys in these cases are being extremely disingenuous when they talk about no harm being done by a demand letter. By it's very nature it is intended to get someone to pay money by scaring them, that is why the attorneys send them.

And while it may or may not meet the legal definition of extortion, to anyone without an attorney on retainer it comes across that way.

15 USC § 1692e paragraph 5 of the Fair Debt Collections Practices Act makes it a violation to: "... threat(en) to take any action that cannot legally be taken or that is not intended to be taken." The factual question at hand is whether they have any intention of taking these cases to court and the circumstantial evidence would make it seem like no.

The penalties for violations of the FDCPA under 15 USC § 1692k include $1,000 per individual and up to $500,000 per class action PLUS attorney's fees.

There is a remedy at law for this type of behavior and I am glad someone is availing themselves of it.

A law suite is not a debt, until you get a judgement.

So what? Just because "Debt" is in the title of the law, that doesn't mean it can't apply to this situation. It's still a threat to take an action that they don't intend to take, i.e. initiate a lawsuit.

Heck, politicians give titles to laws that have nothing to do with the actual content. Look at the Kansas Preservation of Religious Freedom Act, which has nothing to do with preserving religious freedom and everything to do with enabling bigotry.

I believe another valid argument would be "why would the individual need to pirate porn when there are so many free porn sites on the internet already". I mean seriously, who needs to pirate porn? The internet in inundated with free porn, and I should know.

I would like to know how a letter of demand is any different from a bunch of brutes walking into a business and demanding money or violence.

If the owner goes to the police to claim he was extorted can the accused just say "Well its not like he actually paid us, and sure we threatened his business and his family, but we never followed through!, Besides we only said we were going rough him up, not kill him. If he saw the threats we have to deal with he would understand a bump on the head is pretty benign in this business."

Spoofing defense is weak. Spoofing an IP address is difficult and does not work the way most people assume it does.

Salting your tracker with pseudo random IPs is far more common. It's also a good secondary use for the IP tables used in the more common methods of spoofing for service stealing. Trackers also have some incentive to do this.

I believe another valid argument would be "why would the individual need to pirate porn when there are so many free porn sites on the internet already". I mean seriously, who needs to pirate porn? The internet in inundated with free porn, and I should know.

I really don't see how porn survives, It might be the worst business model in the world, similar to a drug dealer giving the "first hit free". But in pron my addiction lessens after use (temporarily), it doesn't increase!

Spoofing defense is weak. Spoofing an IP address is difficult and does not work the way most people assume it does.

Salting your tracker with pseudo random IPs is far more common. It's also a good secondary use for the IP tables used in the more common methods of spoofing for service stealing. Trackers also have some incentive to do this.

Can you elaborate on this? I'm not familiar enough with bit torrent to fully understand what you mean. However I do have a solid grasp of IP/TCP to know spoofing an IP address would be difficult. At least to do anything meaningful such as downloading a file and not just blasting out a packet with a fake IP.

15 USC § 1692e paragraph 5 of the Fair Debt Collections Practices Act makes it a violation to: "... threat(en) to take any action that cannot legally be taken or that is not intended to be taken." The factual question at hand is whether they have any intention of taking these cases to court and the circumstantial evidence would make it seem like no.

The penalties for violations of the FDCPA under 15 USC § 1692k include $1,000 per individual and up to $500,000 per class action PLUS attorney's fees.

There is a remedy at law for this type of behavior and I am glad someone is availing themselves of it.

A law suite is not a debt, until you get a judgement.

So what? Just because "Debt" is in the title of the law, that doesn't mean it can't apply to this situation. It's still a threat to take an action that they don't intend to take, i.e. initiate a lawsuit.

Heck, politicians give titles to laws that have nothing to do with the actual content. Look at the Kansas Preservation of Religious Freedom Act, which has nothing to do with preserving religious freedom and everything to do with enabling bigotry.

You have to read the whole statute; "debt" (as well as "debt collector") is a defined term (15 USC Sec. 1692a(5): "The term "debt" means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.") These letters do not claim that the defendant owes or is obligated to pay any amount of money; they amount to "pay up or we'll sue and you may end up owing us a lot more."

I don't know whether the behavior of the attorneys and plaintiff's amounts to fraud or extortion or not...but if they don't cross the line, they are coming pretty close to it. Before this suit was filed, this kind of scheme was essentially risk free...you would face being slapped down by a judge if you disobeyed a court order of course, but sending out mass demand letters to IP addresses itself really had no downside. Now...depending on the outcome of the suit...there is a real possibility of a monetary penalty for engaging in these practices, even if you otherwise follow the court's orders.

It's probably the case that any specific letter sent out in a case like this is okay (a point the defendants make); what's not okay (maybe) is the scheme of sending out thousands of letters to IP addresses demanding money when there isn't good individualized evidence that the persons who received the letters did what they are alleged to have done. I.e., while there is nothing the matter with sending a letter like this in general, there is a problem with sending letters like this in this particular case.

Again, I don't know exactly where the line is, so I don't know whether they've crossed it. But I would like for a court to address this and maybe define the line.

Have any of these guys considered asking the Doe to simply pay for the film they watched? Ring em up and ask them to throw you a few bucks since we made a film you may or may not have watched/enjoyed/wanked to.

The problem is that the expected value of such a letter probably isn't high enough to cover the costs of production. It would increase your response rate (or rather payment rate), but perhaps not by the 15000% or so margin needed to cover all the assorted legal costs of sending them out. At that point they'd be better just letting it go.

Still doesn't justify what amounts to extortion, though.

Quote:

There is a legal term for what these lawyers are doing is called being a vexatious litigant, and one can be disbarred for it.